Foucault on the prison: Torturing history to punish capitalism

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Foucault on the prison: Torturing history to punishcapitalismKarl von SchriltzPublished online: 06 Mar 2008.

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Karl von Schriltz

FOUCAULT ON THE PRISON: TORTURING

HISTORY TO PUNISH CAPITALISM

ABSTRACT: Michel Foucault has been an academic cause célèbre for some time,

spaivning untold thesis papers and dissertations illuminating oppression's invisi-

ble fingerprints on history, literature, gender, and government. Yet for all his ceu-

trality in American higher education, Foucault's books are not studied so much

for their substantative content as for their underlying insights into the forces

shaping society. This paper confronts this paradox through a critique of the

apotheosis of Foucaultian analysis, Discipline and Punish: The Birth of thePrison. Discipline and Punish can be understood as a masterful harnessing of

leftist assumptions about capitalism to reconfigure history. The extent to which

Foucault distorts history to support his thesis, however, seriously undermines the

practical relevance of his brand of social science.

Discipline & Punish (subsequently cited by page number alone) is gener-ally regarded to be Michel Foucault's masterpiece, and as such, repre-sents the best vantage-point from which to criticize his idiosyncraticbrand of historical analysis (see O'Brien 1989, 37; Sarup 1989,73). Fou-cault himself described it as "my first book" (Merquior 1985, 86).Through his history of the prison, Foucault avowedly sought to forge anew approach to the evolution of institutions, values, and norms. Fou-cault's approach revolves around his theory that "power"—his term forclandestine social forces—shaped history more decisively than the morevisible forces of religion, intellectual currents, or individuals. His

Critical Review 13 (1999), nos. 3-4 . ISSN 0891-3811. © 2000 Critical Review Foundation.

Karl von Schriltz, an independent scholar, may be contacted through the editorial office ofCritical Review.

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39 2 Critical Review Vol. 13, Nos. 3—4

genealogical method, borrowed from Nietzsche, illuminates power's ne-farious influence, and charts its political economy, by cataloguing its ex-ternal manifestations in institutions, and in the writings of leadingthinkers, over time. Indeed, Foucault arguably owes his continuingvogue in American academe not to his contributions to penology, orthe study of mental illness or sexuality for that matter, but to hisgroundbreaking strategy for harnessing history to the cause of leftist so-cial criticism.

This paper argues that Foucault's genealogy of the prison, which em-bodies his subordination of history to his vague conception of power,can be understood as a scathing critique of capitalism, the glaring inac-curacies of which draw the integrity of his approach into question."Power" bears an uncanny resemblance to the capitalist efficiency im-perative. Foucault's cryptic discussion of power neatly tracks the sys-temic forces underlying capitalism; industrialization emerged alongsidethe prison. To make this insinuation, Foucault engages in numerous his-torical distortions. The history Foucault omits—most notably France'shesitancy to adopt the prison and America's penal experimentation—contradicts his theoretical template.

Understanding Power as Capitalism

In Discipline and Punish, Foucault purports to illuminate the fundamen-tal, subterranean forces shaping modern society by disclosing how theevolution of the prison served the changing imperatives of "power":"The history of this micro-physics of the punitive power would . . . bea genealogy or an element in a genealogy of the modern soul" (29).Despite power's centrality, Foucault's elliptical prose does more to ob-fuscate than clarify its nature: "A soul inhabits [man] and brings himinto existence, which is itself a factor in the mastery that power exer-cises over the body. The soul is the effect and instrument of politicalanatomy; the soul is the prison of the body" (30).

A key to unlocking "power" is given by Foucault's approving cita-tions (24, 54) to Rusche and Kirkheimer's "great work" Punishment andSocial Structures, which argues that methods of punishment reflectmodes of production. As feudalism gave way to industrial production,this argument goes, modes of punishment came to reflect the need forfreer markets. Though Foucault refers to modes of production only

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von Schriltz • Foucault on the Prison 393

obliquely, the Marxist framework proposed by Rusche and Kirkheimerarguably represents the analytical foundation of Discipline & Punish.

Foucault's preoccupation with docile bodies, the political economyof power, and efficiency all implicitly refer to capitalist imperatives in-creasingly reflected in society after the Industrial Revolution. Docilebodies (137—38) closely resemble human capital, or bodies whose move-ments have been disciplined through training and education to respondto market forces. The political economy of power (25) is nearly synony-mous with economic competition writ large, or the dynamic process ofnatural selection that strengthens and undermines social structures ac-cording to their economic value. Efficiency (145, 148, 152, 163—65) is aterm lifted directly from economics—it is capitalism's lifeblood. Marketeconomies are driven by the profit motive towards an efficient deploy-ment of scarce resources—Pareto optimality.

Cast in this light, "power" becomes the invisible hand of market eco-nomics. In the pre-industrial era, when trade was sporadic and greatwealth was accumulated by force, power was manifested through mili-tary might, and military efficiency largely determined a state's wealth.By likening public torture and execution to a military campaign by theking against his enemies (50, 57), Foucault intimates that pre-industrialpunishment had an economic value. He indirecdy addresses this pointby observing that "Rusche and Kirkheimer are right to see [public exe-cution and torture] as the effect of a system of production in whichlabor power, and therefore the human body, has neither the utility northe commercial value that are conferred on them in an economy of anindustrial type." Thus, the criminal justice system "was not entirely un-connected to the function of war," which was to enrich the king (57).

Foucault next asserts that the efficiency long displayed by the mili-tary was increasingly demanded from all of society, because the locus ofwealth accumulation shifted from force to enterprise, and the target ofcrime shifted from bodies to goods. The chapter tided "Docile Bodies"argues that in the name of efficiency, the principles of training and regi-mentation that long enhanced military efficiency came to be applied inschools, factories, and hospitals (135-36,138-40). Foucault's "efficiency"is repeatedly related to the sort of efficiency attained on an assemblyline by the division of labor: higher labor productivity resulting inhigher profits (145,163). Training and education are said to result inworkers exhibiting "greater efficiency and speed" (152,164). The systemof justice itself is said to have been shaped in part by a desire to increaseits economic productivity (80-81, 87). In this regard, Panopticism is

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394 Critical Review Vol. 13, Nos. 3-4

nothing more than a metaphor for techniques of increasing human cap-ital that incidentally resemble Bentham's model prison.

By euphemistically referring to capitalism as "power," Foucault isable to launch a backdoor leftist critique of social institutions withoutrecourse to empirical rigor, which has been Marxisms Achilles' heel.1

Foucault's suggestion that history can be explained in terms of the in-sinuation of power into people's lives merely reconfigures Marx's asser-tion that "the history of all hitherto existing society is the history ofclass struggles" (Marx and Engels 1975,32). In Foucault's account, how-ever, class appears by proxy: capitalists are the natural beneficiaries andmasters of power, while "docile bodies" represent the hapless proletariatwho serve it.

Foucault's strategy of scrupulously avoiding the positivist scrutiny in-vited by Marxism was made apparent when an interviewer asked Fou-cault "who wields power against whom in a Panoptic system?" towhich he responded "This is preoccupying me. . . . This is just a hy-pothesis, but I would say it is all against all" (89-90). Yet when Foucaultis engaged in historiography, he describes not so much a war of allagainst all as the deployment of power by bourgeois capitalists, who usethe state to shape society so as better to exploit the proletariat. Foucaultverifies this interpretation in an unusually lucid passage towards the endof Discipline and Punish: "Historically, the process by which the bour-geoisie became in the course of the eighteenth century the politicallydominant class was masked by the establishment of an explicit code andformally egalitarian juridical framework, made possible by the organiza-tion of a parliamentary, representative regime. But the development andgeneralization of disciplinary mechanisms constituted the other, darkerside of these processes" (Foucault, 222).

Discovering History in a Theory

To substantiate his thesis, Foucault strives to show that penalogical de-velopments traditionally attributed to a confluence of disparate fac-tors—religious conviction, scientific inquiries into the nature of pun-ishment and the root causes of crime, and the political influence ofreform advocates—actually reflected the changing requirements ofpower as capitalism blossomed.

Foucault's historical argument can be broken into four parts. First, heasserts that prior to the eighteenth century, public torture and death

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were the primary methods of punishing law-breakers, enforcing lawand order by advertising the sovereign's infinite power over bodies. Sec-ond, he claims that during the eighteenth century, prison suddenly be-came the primary mode of punishment, as the focus of criminal justiceshifted from physical violence to theft. Execution became counterpro-ductive, Foucault argues, because destitute peasants could too easilycommiserate with the condemned. Third, he maintains that throughoutthe eighteenth and nineteenth centuries, prisons came to reflect the re-lentless surveillance, rigid regimentation, and silent introspection ofPanopticism. Law and order came to be enforced from within the indi-vidual, as prisons burned a sense of the state's omniscience into the"soul." Finally, Foucault opines that the prison's failure to rehabilitate,borne out by high recidivism, conveniently acted to transform eco-nomically deleterious, but sympathetic, criminals into publicly detested,but useful, delinquents. Each of these four claims will be considered forits historical accuracy in turn.

The Spectacle of the Scaffold

Foucault asserts that prior to the French Revolution, criminal punish-ments were largely corporal: torture, death, flogging, and banishment(57). While the judicial process itself was secret, torture and executionwere public, conditioning subjects to obey their sovereign (35, 47, 57).In this way, torture and execution acted as both visible judicial rituals—creating the illusion of justice—and political ones—asserting the sover-eign's infinite power over bodies.

Torture and execution were chosen, Foucault posits, because humanbodies were relatively expendable in pre-industrial Europe: they did notmake the significant economic contribution they later would in indus-trial economies (54). Moreover, execution raised few eyebrows, givendeath's prevalence in pre-industrial quotidian life. (55) Thus, torture anddeath strengthened the sovereign's hold on society in dramatic fashionat little cost. The reality, however, is that Foucault's historical accountgreatly exaggerates the frequency of torture and execution and under-states the economic value of pre-industrial human bodies.

As a preliminary matter, Foucault admits that the majority of pre-industrial punishments were not capital, as judicial discretion resulted inmost capital crimes being punished with fines, banishment, or flogging(33). His argument, however, proceeds as though this admission were

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never made: "crime and the punishment were related and bound up inthe form of atrocity.... It was the effect. . . of a certain mechanism ofpower . . . [that] was exalted and strengthened by its visible manifesta-tions" (57). Foucault implies that the spectacle of torture and executionwas widely disseminated throughout society and burned into the publicconsciousness (63). This is at odds with the historical record.

By all accounts, public tortures and executions were not very com-mon in pre-Revolutionary France (Wright 1983, 5). One study of pun-ishment in Old-Regime France, based on records maintained in tworepresentative districts between 1696 and 1789, found that only 21.9percent of guilty verdicts resulted in the death penalty, including only 7percent of those convicted of aggravated theft (Ruff 1984, 61, 116).More importandy, only six of the 30 recorded executions involved pre-death torture (ibid., 61). Throughout pre-Revolutionary eighteenth-century France, less than 10 percent of convictions resulted in deathsentences (Wright 1983,6). Moreover, there is no reason to believe thatmore than a smattering of citizens were direcdy exposed to the specta-cle of torture and execution, given the dearth of public transportation.

If public torture and execution were rare in Old-Regime France, theywere rarer still elsewhere in Europe. In England, fines, not torture andexecution, were the predominant form of punishment between 700 and1189 (Moynahan and Stewart 1980,11—14). Moreover, the subsequent eraof torture and execution was short-lived, for by 1553, an unprecedentedcrime wave had underscored the failure of disproportionately cruel pun-ishments to deter crime, and Parliament began experimenting with im-prisonment (17—22). German-speaking countries began replacing corpo-ral punishment with imprisonment in the late seventeenth century(Rusche.and Kirckheimer 1991, 48). In America, William Perm's GreatLaw of Pennsylvania abolished the death penalty altogether in Pennsyl-vania between 1682 and 1718 (Lewis 1922,10,13).

Foucault's assertion that the low economic value of citizens in pre-Revolutionary France dictated corporal punishment is similarly un-founded. Most European states began reducing capital punishment longbefore industrialization, in the seventeenth century, to ease the burdenon government (not private) coffers (Lewis 1992, 51). For example, theprimary motivation behind the German shift from execution to prisonwas to defray the cost of administering justice though prison labor.Prisons only later came to be regarded as punitive (Lewis 1922, 51;Melossi 1991, 65). In pre-industrial France, subjects were valued as sol-diers and as taxpayers, albeit not as assembly-line workers. As military

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strength depended on manpower, however, most male thieves in seven-teenth-century France were not executed but pressed into service asoarsmen on military vessels (Ruff 1984, 60). France's expansive bureau-cracy, flamboyant aristocratic lifestyles, and military misadventures wereall financed through crushing taxes levied on the peasantry, aided byone of Europe's earliest centralized bureaucracies (Mansel and Winks1980, 51-52).

Given their rarity, public execution and torture did not likely bolstersovereign power in the minds of the populace in the way Foucault sug-gests. It is more plausible that such grizzly punishments were meant tocreate an effective deterrent in an era when most crimes passed unde-tected and unpunished. Thoughts of execution may have preoccupiedwould-be offenders, but law-abiding citizens—the target audience ofexecution and torture, by Foucault's account—probably concernedthemselves more with avoiding criminals.

Foucault exaggerates the importance and popular salience of tortureand execution to create a pre-industrial benchmark from which to criti-cize modernity. The bourgeoisie had yet to "rise to dominate the politicalsystem," so the proletariat's oppression by capitalism had yet to begin. Asthe economic value of manipulating bodies had yet to be discovered,Foucault implies, kings derived satisfaction from the exercise of "surpluspower" over their subjects' bodies through torture and execution, just asthe bourgeoisie would later derive satisfaction fixjm the accumulation ofsurplus wealth on the backs of the proletariat (29,49, 53—54). The earliermodality of power is implicitly judged preferable to the latter because itaffected human freedom on only a superficial level—by altering behav-ior^—whereas the more recent modality eroded human freedom at a deeplevel by manipulating the human "soul" (9,16).

Foucault cannot reconcile the pre-industrial prevalence of exploita-tive noncorporal punishments with power because it blurs the breakbetween pre-industrial and industrial society, and suggests that pre-in-dustrial freedom was diminished in ways that went far beyond the psy-chic impact of torture and execution. To the extent that other, far moreprevalent punishments suggest that human bodies have always possessedan economic value (to the state, if not the bourgeoisie), they weakenFoucault's assertion that prisons sprang from the advent of capitalist ex-ploitation. Foucault intimates that feudal populations were freer for notbeing reduced to cogs in a capitalist machine, but pre-industrial penalsystems, too, often wrung economic value from convicts.

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The Advent of the Prison

To strengthen the causal relationship between industrialization and theprison, Foucault asserts that France's transition from corporal punish-ment to prison "occurred almost instantaneously" and "within a shortspan of time" (115-16). He concedes that the concept of imprisonmentgoes back as far as 1596 in the Netherlands, and had developed as aform of punishment in eighteenth-century England, but argues that theadoption of imprisonment in France had been slowed by its associationwith regal tyranny. French hesitation, he argues, was overcome "instan-taneously" by two interrelated factors: public sympathy for those exe-cuted for crimes against property, and the proliferation of such crimesrelative to crimes of physical violence, which curried less public sympa-thy (62). Both trends coincided with, and are implicitly attributed to,industrialization.

Even a cursory reading of the historical record reveals that Foucaultis wrong about both the timing and the speed of the adoption of im-prisonment. Prisons were well established long before the IndustrialRevolution, and even with industrialization, prisons spread throughFrance not suddenly, but glacially. The first prison sentence was pre-scribed by English law in 1275: two years imprisonment for rape (Moy-nahan and Stewart 1980, 13). In medieval England, criminal fines, withimprisonment pending their payment, became a profitable state enter-prise (ibid., 46). After 1557, "Bridewell houses" were constructedthroughout England, and widely imitated throughout Europe, for im-prisoning petty criminals and vagrants and putting them to hard labor(Roberts 1997, 6). At the same time, Germanic countries had begunadopting prisons and prison labor in the sixteenth century as a meansof defraying judicial expenses (Melossi 1991, 65). In seventeenth- andeighteenth-century France, 60 percent of convictions resulted in im-prisonment or banishment, not death (Ruff 1984, 60). For example, thepunishment for most crimes against property was imprisonment—onmilitary galleys as oarsmen for men, and in maisons deforce for women(ibid., 60, 113-16). In 1690, William Penn made prison the sole meansof punishment in Pennsylvania, until the Queen restored English penallaw in 1718 (Lewis 1922, 11, 13). When American independence re-stored prison as the principal form of punishment 50 years later, it washardly a sudden development, given the Great Law of Pennsylvania acentury earlier.

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While the prison's incubation had ended in most states by the end ofthe eighteenth century, France only came to embrace imprisonmentfully in the twentieth century—not the early nineteenth, as Foucaultasserts. True, legalized torture ended abruptly between 1780 and 1788,but the debate surrounding prisons raged on for another century.(Wright 1983,15) It is fair to say that after 1788, only in France was thedevelopment of the prison tortured.

After the French revolution, French penology followed a pattern ofdebate, reform, revolution, and regression. In 1789, the Estates-Generalenacted a new penal code that would have made prison the primaryform of punishment, but the Jacoban Terror of 1794 aborted its imple-mentation, and public executions blossomed as never before (Wright1983. 31. 34)- Napoleon's coup d'etat restored order in 1799, and penalreform ensued, but the reforms expanded the death penalty and corpo-ral punishment, and punished lesser crimes with deportation, not im-prisonment—which was considered too expensive (ibid., 39-40).

Napoleon's exile and the establishment of the First Republic un-leashed an explosion in public debate over the prison. The debate verynearly bore fruit in a plan for the construction of a new prison basedon the American Walnut Street model, but this scheme was scuttled byNapoleon's hundred-day return from exile (ibid., 54, 56).

The subsequent restoration of King Louis-Philip saw the resumptionof the prison-reform debate, and the slow replacement of deportationby imprisonment. This wave of reform crescendoed in the Assembly'sadoption of the American Cherry Hill model prison in 1848 (as advo-cated by Alexis de Toqueville after his fact-finding mission to theUnited States) in which prisoners slept and worked in the solitude oftheir own cells (Wright 1983,78). Yet again, revolution aborted the re-forms, and the new government of the Second Republic began paringback the nascent prison system—consisting of a mere 20 cellular pris-ons—by eliminating most prison labor (78,85).

The 1852 coup d'etat by Napoleon II further reversed prison reform,replacing imprisonment—still considered too expensive—with depor-tation for more serious crimes. (Wright 1983,92; Perrot 1978, 234). By1875, only two new prisons had been added to France's total, as the de-bate between advocates of the prison and advocates of deportationraged on during the Third Republic (Wright 1983,130).

In 1885, the National Assembly finally succeeded in implementingwhat King Louis-Philip had attempted 50 years earlier, enacting a lawthat made prison the primary form of punishment and that mandated

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the construction of a cellular prison system (Wright 1983, 136). Mostlocalities refused to comply with the law, however, diverting moniesearmarked for prison construction to deportation and penal colonies(ibid., 138). The largest and most modern cellular prison in Paris wasdemolished in 1898, in an important symbolic defeat for prison advo-cates, and 20 years after the law's passage, the number of cellular prisonshad only doubled to 41 (ibid.). In fact, deportation was to remainFrance's primary form of punishment—with roughly 11,000 convictsdeported annually—until the 1930s, when prisons finally came intotheir own (ibid., 138,150).

The historical record clearly indicates that the French adoption ofthe prison was anything but instantaneous, and certainly belies Fou-cault's assertion that the French carceral system was complete on Janu-ary 22,1840, with the construction of Mettray (293). Further, the coun-tries that had adopted the prison as their primary means of punishmentby the end of the eighteenth century—most notably the UnitedStates—did not do so suddenly. The adoption of imprisonment as pun-ishment was everywhere steeped in precedents, from thirteenth-centuryEngland to William Penn's Pennsylvania law in 1682.

Foucault times the prison's sudden arrival to coincide with industri-alization, the concurrent rise in crimes against property, and thegroundswell of popular sympathy for thieves (61—63,75—77). He enthu-siastically recounts how the emergent proletariat came to identify withcriminals, elevating them to the status of folk heroes as industrializationdrove people from the land and thrust multitudes into poverty (67).The idea is that public torture and execution became a flashpoint forpublic dissatisfaction and a recipe for proletarian revolution—a risk theemergent bourgeoisie sought to mitigate by cloaking the penal processbehind prison walls (77). This notion is culled directly from the tradi-tional Marxist account of the appearance of prisons in France, but thisaccount has been weakened by evidence that most advocates of theprison sprang from the proletariat, not the bourgeoisie (Wright 1983,20-21). Foucault adroitly circumvents this Marxist shortcoming byshifting the analytical focus from class to capitalism itself.

The fact that the establishment of the prison did not coincide withthe Industrial Revolution, but rather stretched over much of the eigh-teenth and nineteenth centuries, greatly weakens the causal relationshipFoucault seeks to establish between industrialization and imprisonment.The pre-industrial use of the prison, and its irregular use within andacross countries after the Industrial Revolution, seem consistent with a

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more complex evolution of penology than Foucault provides. For ex-ample, the hesitancy of the French in adopting the prison, and theirpreference for transportation, suggests relatively less interest in disciplinethan in incapacitation: once transported, convicts seldom returned.Foucault ignores all of this, redacting history as demanded by histheory.

The Prison as Capitalist Mind Control

In the third and most important part of his argument, Foucault consid-ers how the structure of the prison came to reflect the imperatives ofpower, which were roughly coextensive with the goals of Panopticism.The aim of the prison, Foucault opines, ultimately became the transfor-mation of inmates into compliant, law-abiding, economically produc-tive automatons, reflecting the efficiency demands of emerging marketeconomies (163—64). To this end, prisons came to embody the coerciveprinciples of Jeremy Bentham's Panopticon, as did the school, the hos-pital, and the factory. Panopticism disciplined its subjects through a pro-gram of constant surveillance coupled with strict regimentation accord-ing to detailed instructions. Constant surveillance forced subjects tointernalize the gaze of authority—enabling them to regulate them-selves—while regimentation molded their physical movements to max-imize productivity.

Foucault identifies five ways in which prisons incorporated Panopti-cism. First, cellular isolation forced the inmates into greater self-reflection, pushing them to internalize authority (236). Second, constantsurveillance achieved the same end (249-50). Third, remunerated prisonlabor was adopted as a means of regimenting the habits and movementsof inmates, while impressing upon them the centrality of wages as theincentive to work (240, 243). Fourth, flexible prison sentences weremeted out, reflecting the requirements of psychological rehabilitationrather than the seriousness of the infraction—though Foucault admitsthat flexible sentencing was practiced only sporadically (244). The final,similar expression of Panopticism in the prison, Foucault asserts, was thecognitive shift from viewing inmates as "law breakers" to viewing themas "delinquents" (255). Prison administrators regarded their inmates nolonger in terms of the crimes they had committed, but rather in termsof their lifelong social pathologies, as reflected by their "biographies."The prisoners were seen as, and made to feel alienated from, society.

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This portion of Foucault's argument is the one that is the most ab-stracted from reality, and is therefore the most difficult to relate to thehistorical record; but the actual evolution of the prison during thenineteenth century, and the explicit motivations behind its evolution,seem to diverge markedly from Foucault's account. Industrializationundoubtedly brought an unprecedented awareness of the importance ofproductivity to economic life, and the emergence of surveillance andhierarchy in schools, factories, and hospitals probably reflected this con-cern. Foucault is also credible in suggesting that the enhancement of ef-ficiency through discipline initially appeared in the military—where theimportance of efficiency was first recognized—long before the Indus-trial Revolution brought the same concern to other institutions. Forthis reason, efficiency concerns may have unconsciously undergirdedthe pronouncements of prison reformers—there is no way of ever veri-fying their true motivations (Wright 1983, 22). However, the actual ex-tent to which ideas other than Panopticism were reflected in the struc-ture of prisons suggests otherwise.

The lukewarm reception of imprisonment in France was reflected inthe disorganized state of the French prison system, which consisted oftwo levels. Roughly 400 local prisons housed half the prison popula-tion, including those waiting for trial and petty criminals serving briefsentences (Wright 1983,133-34). These squalid facilities were describedby shocked prison inspectors as "filled with stupor and horror"; the lackof segregation according to age, sex, or degree of criminality renderedthem veritable "crime factories" (ibid., 134). These prisons remaineduntouched by the philosophical speculation about incarceration, andcertainly exhibited no trace of Panopticism—there was no cellular iso-lation, no work, and no organized surveillance of any kind.

Despite the vigorous political debate surrounding them, France's na-tional prisons—the maisons centrales—reflected few Panoptic principles,as their development was stunted by inadequate financial and politicalsupport. The first French prison to modestly reflect Panopticism was LaPetite Roquette, opened in 1836 to considerable controversy (Wright1983, 68). Though Roquette adopted prison labor and a rule of silence,it fundamentally diverged from Panopticism in that prisoners slept andworked communally, rather than in cells. Cellular incarceration was tobe continuously resisted in France, as too cruel, expensive, and un-French (ibid., 75,92).

Moreover, prison labor, the linchpin of Panopticism, was imple-mented unevenly and against great resistance. At first, productive work

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was expected of all inmates, and usually organized by private entrepre-neurs, but relentless political pressure from artisans and unions againstunfair prison competition ultimately limited the types of goods pro-duced to trifles for public agencies (Wright 1983, 162-64). And highFrench unemployment after the 1850s often made prison labor lesscompetitive than free labor, further restricting the work available to in-mates (Rusche and Kirkheimer 1991, 58—59). Tocqueville himself ar-gued that prison labor was better suited to the United States, wherelabor was scarce, than to France, where labor was plentiful (ibid., 60).

Apart from solitary confinement and steady work, the Panoptic ele-ment most sorely lacking in French prisons was order. Horrible over-crowding, and the use of racketeers to compensate for a shortage ofguards, made prison discipline impossible to maintain (Wright 1983,135). Thus, the prevalence of drunken revelry among prisoners was oneof the prime motivations behind King Louis-Philippe's reform effortsin the 1830s (ibid., 69). Charles Lucas, a nineteenth-century Frenchpenal scholar, even suggested that the factory prepared the lawbreakerfor the rigors of prison labor, not vice versa, as prisons were too undis-ciplined (Perrot 1978,230). Thus, the French prison system of the nine-teenth century bore little relation to Panopticism: half of it consisted ofchaotic local prisons, and the other half imposed little solitary confine-ment, ineffective surveillance, and no steady work with which to renderinmates disciplined, docile bodies.

The American prison system of the early nineteenth century betterapproximated Panopticism, though the resemblance faded over thecourse of the century. The actual floor plan of the Panopticon was acrushing failure: the first prison that used Bentham's architecture—Western State Prison, built in 1818 in Pittsburgh—was demolished andrebuilt along more conventional lines 15 years later (Lewis 1922,118—19). Still, U.S. prisons quickly adopted all the other trappings ofPanopticism: rigid discipline, with complete silence imposed throughcorporal punishment; Orwellian surveillance techniques, such as the"lockstep" and striped uniforms; and solitary confinement in cells bynight, with communal work by day (ibid., 17-18). The state-by-stateexperimentation encouraged by America's federalist system of gover-nance, however, made American prison structure highly variable anddynamic, ultimately resulting in the demise of Panopticism (McKelvey1968,28)

The first, post-Revolutionary prison—Walnut Street prison inPhiladelphia, built in 1790—incorporated cells for the first time so as

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to prevent the transmission of criminality through fraternization, whichwas endemic in communal prisons (Lewis 1922, 25). A similar rationalemotivated the concurrent elimination of chain gangs: not because theywere currying public sympathy, but because they were engaging inlively conversation with young, impressionable boys, who frequentlytook their lessons to heart (ibid., 17-18). Walnut Street ultimately faileddue to overcrowding, which stymied prison labor and revived the dis-order cells were supposed to alleviate.

By the 1820s, new prisons opened in Pennsylvania, at Cherry Hill,and in New York, at Auburn, offering different solutions to WalnutStreet's perceived shortcomings. The Cherry Hill solitary system pre-scribed total isolation, with each inmate working and sleeping in theconfines of his own cell, only later to be joined by a cellmate as spacelimitations demanded. Auburn's congregate system opted for commu-nal work by day, with solitary confinement at night. Given the threat offraternization, prison discipline depended on Draconian enforcement ofthe "rule of silence," typically by threat of lashings. The Auburn systemultimately prevailed for three reasons: the larger cells required by theCherry Hill model were too expensive; total isolation was consideredinhumane; and Auburn's communal work was more productive andprofitable than Cherry Hill's solitary work (Lewis 1922, 132; Roberts1997. 34. 39)- Accordingly, most new U.S. prisons built in the earlynineteenth century adopted the Auburn model.

While the Auburn prisons began as a means of disciplining prison-ers, their transformation into profit centers by avaricious entrepreneursand prison administrators quickly unraveled discipline. Prisoners gradu-ally enjoyed more perks in return for higher productivity, and by the1860s, all but two states had dropped the rule of silence. (McKelvey1968, 40) The Auburn profit machine was too successful for its owngood, however, and protests from unions and companies competingwith prison labor resulted in laws greatly constraining, and in somecases forbidding, the use of prison labor for commercial purposes(Roberts 1997,64; Lewis 1922,140,145).

Further, exploitative prison labor, and the brutal enforcement of therule of silence, galvanized prison reformers in the 1850s, who felt thatprisons should serve a more rehabilitative function—a sentiment re-flected in a widely publicized poll of prison wardens (McKelvey 1968,39). To this end, the National Prisons Association—the nation's leadingpenalogical society—adopted its famous Declaration of Principles in1870, which advocated the more rigorous segregation of criminals ac-

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cording to age and pathology; rewards and indeterminate sentencing toencourage reformation; and the establishment of prison schools andhospitals (Roberts 1997,60). The Declaration, coupled with strong reli-gious convictions, inspired the establishment of the Elmira System in1876 at the Elmira prison in New York (ibid., 63). Gone was corporalpunishment, the rule of silence, striped uniforms, the lockstep, andprison labor for profit. In place of naked coercion, Elmira substitutedprison schooling, prison labor for vocational training purposes only,rigid segregation—separating prisoners according to three grades ofcriminality—and extracurricular activities, such as marching bands andathletics (ibid., 64). By 1900, 17 states had adopted the Elmira model,including the Auburn prison itself, and the modern prison had arrived.

What had begun at Auburn as Panopticism ended at Elvira as hu-manist rehabilitation. Prison labor had shifted its emphasis from disci-pline to profit, before being snuffed out by disgruntled unions and busi-nesses. The harsh punishment and rigid surveillance required by therule of silence had been replaced by rewards for good behavior andbenevolent career counseling. Panopticism had been repudiated.

Foucault's counterintuitive focus on backward French prisons to theexclusion of the more Panoptic U.S. prisons is itself highly misleading.The United States led the world in penalogical developments through-out the eighteenth and nineteenth centuries, serving as a hotbed ofboth debate and experimentation (McKelvey 1968, 16, 23). Had Fou-cault dealt with U.S. penology beyond the Auburn versus Cherry Hilldebate carried on in France, he would have had to square his theory ofpower with a vast array of contradictory developments. French prisonswere far less dynamic and varied than those in the United States(though French penalogical debate was just as lively), and thus far easierto squeeze into Foucaultian templates. Even limiting his analysis toFrance, however, Foucault has to ignore penal reality to focus onPanoptic theories and principles that were debated but never success-fully implemented. These omissions are especially glaring given the un-conscious motivations Foucault ascribes to prison reformers; such moti-vations should, at the very least, be reflected in the institutions theypurportedly shaped. The fact that they were not is the weakest link inFoucault's four-part historical argument. Accordingly, Foucault's centralclaim that capitalist efficiency imperatives dictated a Panoptic prisonstructure unravels when confronted by the reality of nineteenth-century prisons in America and France.

Foucault's focus on Panopticism obscures the visible forces driving

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the nineteenth-century development of prisons, which had more to dowith trial and error, expediency, and the work of impassioned reformersthan with a desire to mold passive proletarians. Capitalism was far fromthe minds of the Quakers who founded the first modern prison at Wal-nut Street. Rather, Walnut Street was conceived as the very embodi-ment of Quaker values, with solitary confinement encouraging intro-spection, labor forging good habits, and religious instruction facilitatingspiritual growth. Within 20 years, however, the prison was in shambles,as overcrowding had unraveled solitary confinement, work, and disci-pline. Western State Prison, which did indeed test Bentham's Panopti-con, was an even more spectacular failure. Cherry Hill fared little bet-ter, as the relentless cellular isolation reportedly drove prisoners mad.

The shortcomings of imprisonment were even more pronounced inFrance. Deportation was the preferred punishment: a cheaper, more ef-fective attack on recidivism (and one that advanced French imperial-ism) than prisons, which were largely overcrowded, communal, andundisciplined. Prison labor was initially embraced, only to disintegratewith rising French unemployment. Numerous attempts at prison re-form were thwarted by an endless succession of social upheavals.

Panopticism achieved brief success in America with the congregatesystem begun at Auburn, but it contained the seeds of its own destruc-tion. The system's heavy-handed discipline, coupled with its blatant ex-ploitation of prison labor, drew fire from the national press and fromprominent religious figures such as Louis Dwight. The crusade for re-placing prison labor with rehabilitation, spearheaded by a coalition ofthe National Prison Association, self-interested unions and businesses,and penal crusaders, ultimately spawned the Elmira System of voca-tional training in a congenial environment.

How the overarching imperatives of a capitalist economy—as op-posed to the income of particular capitalists—could have been servedby Auburn's dysfunctional brand of Panopticism is far from obvious.Perhaps these prisons initially strove to discipline their inmates througha combination of cellular isolation, silence, and work; but all tooquickly, prison labor became a route to profit, not rehabilitation. In1852, nine Auburn-style prisons reported a massive combined profit of$23,000 (McKelvey 1968,40). The profit motive was even more explicitin the South, where poorer states washed their hands of prisoners en-tirely, leasing them to private factories and farms that housed themunder atrocious conditions (Roberts 1997, 51). In this way, Americanprisons served the marketplace far more directly than Panopticism, but

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without touching the prisoners' souls so as to make them efficientworkers. Greed and administrative expediency had effectively trumpedthe high-minded words of Bentham, Eddy (father of the Auburn sys-tem), Montesquieu, and Beccaria.

If the state prison sector evolved slowly in the United States, andglacially in France, the local prison system was a shambles in bothcountries (Wright 1983,134; McKelvey 1968,20). There, petty criminalsserving short sentences were herded into communal cells with the bareminimum of heat, comfort, and food, and often without regard for guiltor innocence, age, or gender (McKelvey 1968, 35). There was no work,no recreation, and more importandy, no method whatsoever, just pun-ishment and incapacitation.

Foucault's insistence that Panopticism was the leitmotif of nine-teenth-century imprisonment is belied at every turn, then, by the his-torical record. Most glaringly, the French state penal system on whichhe chooses to focus was far less Panoptic than its American counter-part. Transportation, not prison, was the preferred punishment inFrance. The actual French prison system was largely communal, undis-ciplined, and sedentary. And the American prisons that Foucault ne-glects developed away from, not towards, Panopticism.

The Prison's Convenient Failure

After recounting his dubious history of the prison, Foucault reveals thatincarceration failed to achieve its lofty aspirations, failing to reducecrime, increasing recidivism, intensifying popular resentment against thesystem of justice, and spawning a community of irredeemable delin-quents (265—68). He defdy recharacterizes this failure, however, as anintegral part of the unconscious capitalist plot. Foucault explains that bytransforming criminals into delinquents, thereby branding them as badpeople, prisons generated useful deviants and helped increase the gulfbetween law-abiding citizens and lawbreakers. For want of gainful em-ployment, the newly created deviants were pressed into service by thebourgeoisie, running brothels, casinos, and other criminal enterprises;spying on the proletariat; and justifying employment in the carceral sys-tem (277,285).

The "useful delinquency" argument fundamentally fails by mischar-acterizing recidivism as the result of prison reform, rather than as itscatalyst. For example, high recidivism rates spurred the adoption of

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transportation in France and the Auburn system in America. As theAuburn system self-destructed, the Elmira system was proposed as a su-perior means of transforming prisoners into law-abiding citizens,thereby reducing recidivism. Post-release guidance counselors and smallpayments were provided in several American jurisdictions to facilitatethe reintegration of ex-cons into the workforce (McKelvey 1968, 43).By ignoring the dynamic, heterogeneous nature of penalogical develop-ment in favor of a monodimensional theory, Foucault mistakes causefor effect.

The useful delinquency argument also fails on its own terms. Historysuggests that bourgeois citizens continued to show concern for prison-ers, delinquency or no. Beginning in the late eighteenth century, Amer-ican Quakers began visiting prisons to ensure humane conditions, andthey tried to help rehabilitate convicts through such organizations asthe Philadelphia Society for Alleviation of the Miseries of Public Pris-ons (Lewis 1922, 13, 28). In France, analogous organizations of aristo-crats monitored prison conditions and fought for their improvement(Wright 1983, 14, 56). Throughout the nineteenth century, numerousprison-reform gadflies in the United States and Europe succeeded ingalvanizing public indignation over appalling prison conditions, oftenyielding substantial results. Even apart from single-minded reform ad-vocates, at least one historian (Melossi 1991, 71) opines that mostnineteenth-century civil protests held in England and America were in-tended to improve prisons, and that the storming of the Bastille had asmuch to do with anger over mean prison conditions as with any desireto overthrow the monarchy.

Nor was tolerance for criminality as class-specific as Foucault sug-gests. There was no pocket of tolerated bourgeois illegality such asgambling that benefited from a willing pool of delinquents who werebarred from gainful employment by their prison records (279). Indeed,the most important new criminal laws to emerge in nineteenth-centuryFrance came at the expense of the bourgeoisie, as white-collar crimewas increasingly penalized (Wright 1983, 220). So-called "crimes ofcunning" were increasingly recognized and prosecuted in the 1860s, and"the depraved crook of the industrialized areas" was officially deemedmore contemptible than the "illiterate inhabitant of [the] Southernprovinces who . . . kills his adversary in a fight" (ibid., 224—25, quotingCompte, France's crime statistics annual).

Foucault's related charge that employees of the justice system ad-vanced their own institutional interests by encouraging recidivism is

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made less convincing by the fact that elected officials and advocatesfrom outside the penal system ultimately determined penal law and thestructure of prisons. For example, transportation in France, and theElvira system in America, were long-term strategies to combat recidi-vism that arguably reduced employment in the penal system, and atleast replaced old employees with new ones. The rapidly changingpenal environment throughout the nineteenth century suggests thatpenal employees were not very adept at protecting their jobs by main-taining the status quo.

Foucault's deviancy argument puts a positive spin on the prison'sseeming failure as a disciplinary device. Describing this failure in drystatistical terms (265-68). Foucault manages to obscure the real reasonprisons failed to produce self-disciplined workers: namely, that theyfailed to adopt Panopticism or any other policy that could have reducedinmates to mindless cogs in the capitalist machine. Cut loose from realhistorical moorings, Foucault's deviancy argument overlooks the possi-bility that recidivism and undiminished crime rates were catalysts forfurther prison reform, not bourgeois rationales for perpetuating a mal-functioning Panoptic juggernaut.

By systematically butchering the history of the prison, Foucault is ableto forge the four links in his argumentative chain. First, public tortureand execution served as operant conditioning in disorganized, pre-in-dustrial societies. Second, prisons instantaneously materialized as indus-trialization brought a surge both in theft and in public sympathy forthieves born of a growing class awareness. Third, Panopticism perme-ated prisons—as well as schools, factories, and hospitals—as a means offashioning the mindless automatons required by an efficient capitalisteconomy. Fourth, recidivism made criminals widely reviled and eco-nomically useful.

While Foucault's history of the prison neatly tracks his conception ofpenology as capitalist conspiracy, it diverges markedly from the histori-cal record. Public torture and execution were not nearly as prevalent asFoucault suggests; they were common enough to publicize the punish-ment for certain crimes, but not so common as to cow citizens in theface of the sovereign's limitless power. Nor did prisons appear suddenly:imprisonment was intermittendy utilized in various guises for centuriesprior to 1840, and France was especially slow in adopting it. Panopti-cism was the exception, not the rule, only briefly implemented in

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American prisons in the first half of the nineteenth century. Recidi-vism, far from being tacitly encouraged, was constantly attacked bychanges in penal strategy.

A more complete history of the prison suggests that many forces be-yond "power" were at work. Economic and bureaucratic shortcomingsplayed a prominent role in the development of French prisons, and cer-tainly rendered Panoptic discipline and punishment a practical impossi-bility for most convicts. Humanitarian and religious convictions playeda prominent role in the evolution of the American prison, as did feder-alist experimentation. More generally, industrialization did not force themodalities of power into the shadows—shifting from a visible dominionover the body to an insidious influence on the soul—but, rather, forcedthem into the light as never before. The political revolutions that ac-companied the Industrial Revolution forced governments to justifypenology on utilitarian grounds, which were constandy subject to pub-lic debate and state experimentation. While the disciplinary require-ments of capitalism were undoubtedly factored into penal debate, andwere sometimes incorporated into prisons themselves, they were not al-ways decisive, and often lost out to the competing values of fairness,compassion, and pragmatism.

Foucault denies any allegiance to Marxism and rejects class or pro-letarian revolution. Yet it should not be forgotten that the tale he tellsin Discipline and Punish is a tale of the triumphant imposition of falseconsciousness by capitalist "power." Nor should it be forgotten thatthis tale is, in virtually every major detail, wrong.

NOTES

I. Foucault disparaged Karl Marx as an extension of David Ricardo, and Marx-ism as a theory that "can only breathe in a positivist pond" (Sarup 1989, 78).He found Marxists too eager to transform Marxism into a science, where sci-ence is merely a fiction wielded to reify the distopian status quo (ibid., 77, 88).More fundamentally, Foucault felt Marxists were too class-obsessed, arguingthat the true source of oppression is "power," which transcends class. The factthat power operates above the state makes proletarian revolution futile, as its illeffects would be undiminished by a change in government (ibid., 86).

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REFERENCES

Foucault, Michel. 1977. Discipline & Punish: The Birth of the Prison. New York:Vintage.

Lewis, Orlando F. 1922. The Development of American Prisons and Prison Customs,1776-1845. Montclair, N.J.: Patterson Smith.

Mansel, Philip, and Robin W. Winks. 1980. The Lily and the Lion. New York: HBJPress.

Marx, Karl, and Frederick Engels. 1975. Manifesto of the Communist Party. Peking:Foreign Language Press.

Melossi, Dario. 1991. "The Establishment of Modern Prison Practice in Continen-tal Europe." In Imprisonment: European Perspectives, ed. John Muncie andRichard Sparks. New York: Harvester Wheatsheaf.

Merquior, J.G. 1985. Foucault. Berkeley: University of California Press.McKelvey, Blake. 1968. American Prisons: A Study in American Social History Prior to

1915. Montclair, N.J.: Patterson Smith.Moynahan, J.M., and Earle K. Stewart. 1980. The American Jail: Its Development and

Growth. Chicago: Nelson-Hall.O'Brien, Patricia. 1989. "Michael Foucault's History of Culture." In The New

Cultural History, ed. Lynn Hunt. Berkeley: University of California Press.Perrot, Michelle. 1978. "Delinquency and the Penitentiary System in Nine-

teenth-Century France." In Deviants and the Abandoned in French Society, ed.Robert Forsted and Orest Ranum. Baltimore: Johns Hopkins UniversityPress.

Roberts, John W. 1997. Reform and Retribution: An Illustrated History of AmericanPrisons. Baltimore: United Book Press.

Ruff, Julius R. 1984. Crime, Justice, and Public Order in Old Regime France, 1696-1789.London: Croom Helm.

Rusche, George, Otto Kirkheimer. 1991. "Punishment and Social Structure." In Im-prisonment: European Perspectives, ed. John Muncie and Richard Sparks. NewYork: Harvester Wheatsheaf.

Sarup, Madan. 1989. An Introductory Guide to Post-Structuralism and Post-Modernism. Athens: University of Georgia Press.

Wright, Gordon. 1983. Between the Guillotine and Liberty: Two Centuries of theCrime Problem in France. New York: Oxford University Press.

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Documents

Foucault on the prison: Torturing history to punish capitalism